TERMS AND CONDITIONS

1.  ENTIRE AGREEMENT.  The provisions of this order are the result of negotiations between the parties.  These provisions supersede any prior dealings between Metals Engineering Corporation (hereafter referred to as “Purchaser”) and Seller, and the rights and remedies contained here shall be governed without regard to any course of dealing or prior dealings.  Seller has the opportunity to conduct such inquiry and inspection as it deems necessary and has satisfied itself as to the nature of the work, the character, quality, and quantity of materials and equipment which will be required, and all matters which can in any way affect performance hereunder.  All contracts must be with either the cognizant Purchaser or the Purchaser’s agent (“Purchasing Agent”).

2.  ACCEPTANCE.  This order must be acknowledged immediately by Seller and such acknowledgement shall constitute an acceptance by Seller of all terms and conditions herein contained:  provided, however, in the absence of such acknowledgement, any delivery of the goods called for in the purchase order, if accepted by the Purchaser, constitutes an acceptance by the Seller of the terms and conditions herein provided.  No counter-terms, oral or otherwise, or terms written or printed upon Seller’s acknowledgement forms or invoices at variance with the terms and conditions herein, shall be effective with regard to the contract herein unless agreed to in writing by the Purchaser.  This order and any acceptance thereof shall be construed as a contract made in the state of Tennessee and governed by its laws.

3.  PRICE.  Seller warrants that the price(s) of the items set forth herein and paid for by Purchaser do not exceed those   charged by Seller to any customer purchasing the same items in like or similar quantities.

4.  PACKING AND SHIPPING.  All materials shall be suitably packed, marked and shipped in accordance with the requirements of common carriers and in a manner in which will (a) secure lowest transportation costs, (b) assure arrival in a safe and undamaged condition, (c) permit efficient continuing storage under normal conditions and (d) comply with any notice of Purchaser’s special storage requirements, and no additional charge shall be made to the Purchaser therefore or for drayage shipment, which must be accompanied by an itemized packing slip, in the absence of which Purchaser’s count shall be accepted as conclusive.  Premium cost shipment for late deliveries will be at the expense of Seller.

5.  CANCELLATIONS.  Purchaser reserves the right to cancel this order in its entirety or in part (a) on account of defects in material or equipment, workmanship or quality, (b) if materials or equipment are not shipped as specified herein, or are not in accord with drawings and prints, approved samples or specifications issued in connection herewith, (c) if the sale or use of any material or equipment purchased from Seller is claimed to infringe any U.S. or Foreign Patents, copyrights, or trademarks, and (d) if Seller fails to comply with any other terms or conditions of this order, in each such event Purchaser reserves the right to return for credit and without liability any such material or equipment which Purchaser may have on hand.  The provisions of this paragraph shall not be construed or interpreted to limit Purchaser’s right to reject goods or revoke acceptance under the Uniform Commercial Code.

6.  DELIVERY.  Deliveries are to be made both in quantities and on time specified in schedules as released or approved by Purchaser.  Purchaser shall not be liable for any material, either raw or processed, provided by Seller in excess of Purchase’s written releases.  Purchaser may from time to time change delivery schedules or direct temporary suspension of scheduled shipments without additional charge therefor.  If any deliveries are not made as scheduled, Purchaser shall have the right without liability to cancel all or any portion of this order which Seller has failed to deliver according to authorized delivery schedules.

7.  DEFAULT.  Purchaser may, by written notice of default to Seller, terminate this order or any part thereof if Seller (a) fails to deliver the articles or perform the services in accordance with the delivery schedule specified herein, or any extension thereof, or (b) so fails to make progress as to endanger performance of this order, or (c) fails to comply with any of the provision of this order and does not cure such failure within a period of ten (10) days, or such longer period as Purchaser may authorize in writing, after receipt of notice from Purchaser specifying such failure.  In the event of termination of this order or any part thereof, pursuant to this clause, Purchaser may purchase similar articles elsewhere or secure the manufacture and delivery of the articles so terminated by order or other means.  Seller shall be liable to Purchaser for any excess cost to Purchaser, provided, however, that Seller shall not be liable for such excess cost when the delay of Seller in making deliveries is due to causes beyond the control of, and without the fault or negligence of, the Seller.  Such causes may include, but are not restricted to, act of God, the public enemy, the Government in its sovereign or contractual capacity, or fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather.  No cause shall constitute a basis for excusable delay unless Seller notified Purchaser in writing of the existence of such cause within ten (10) days from the beginning thereof.  Purchaser may, by written notice, terminate this order, in whole or in part, for default, if, in Purchaser’s opinion, Seller appears to be insolvent or to be in an unsound financial condition so as to endanger performance.  The provisions of this paragraph shall not limit the remedies available to the Purchaser under the Uniform Commercial Code.


8.  PAYMENT.  Payment shall be due net 45 (forty-five) days from the date of receipt of invoices or material, whichever date is the latest, unless otherwise provided herein or agreed to by the parties.  By paying Seller’s invoice before arrival or complete inspection or testing of the articles at the Purchaser’s plant, the Purchaser reserves the right to make adjustments for any shortage in quantity, or for rejections.  Rejected articles or materials or any excess of quantities ordered, are returnable at Seller’s risk and expense.  Goods shipped to Purchaser in advance of schedule may be stored by Purchaser at Seller’s expense or may be returned to Seller at Seller’s expense, but if retained, invoices may be paid as of scheduled delivery dates.


9.  WARRANTIES.  Seller expressly warrants that all articles, material or work covered by this order will conform to the specifications, drawings, samples or other description furnished or specified by the Purchaser, and will be merchantable as good material and workmanship, and free from defect, and that all the material covered by this order which is the product of Seller or which is in accordance with Seller’s specifications will be fit and sufficient for the purposes intended.  Seller further agrees that this warranty shall survive acceptance and payment for the articles, material, or work, that it will run to Purchaser, its successors, assigns, customers and users of its products.  The aforesaid express warranties shall be in addition to any warranties expressed or implied in law and any standard warranty or guaranty of Seller. Seller further agrees to fully indemnify and save Purchaser harmless from and against any and all loss, damage, liability or expense whatsoever, suffered as a result of any breach of warranty, including without limitation, attorney’s and other professionals’ fees and costs of recalls, voluntary or otherwise.


10.PATENTS.  Seller covenants and guarantees that all machines, devices, and materials furnished hereunder (and the normal use thereof) are free of infringement of any valid patent, copyright or trade mark and that Seller will at its own expense, defend any actions or suits alleging such infringement by Purchaser, its successors, assigns, customers, or any person selling or using any product manufactured by Purchaser which may involve any such alleged infringement.

11.CHANGES.  It is expressly agreed that (a) this order, and the terms and conditions herein, may not be changed in any respect without the written authority of the Purchaser, (b) the Purchaser shall have the right by written order to make changes from time to time in the work to be performed by Seller hereunder, (c) in no event shall Purchaser have any liability for loss of anticipatory profits or other special, consequential, incidental, punitive or exemplary damages of either Seller or Seller’s suppliers.  If such changes by Purchaser causes an increase or decrease in the amount due under the order in the time required for its performance, an equitable adjustment shall be made as agreed to by the parties and the order shall be modified in writing accordingly.  Subject to any effective delivery schedules at the time, adjustments in respect of quantity reductions shall be on a cost basis.  Claims by Seller for quantity reductions, together with cost breakdowns in a form acceptable to Purchaser, must be made within thirty (30) days from the date the change is ordered or within such further period as Purchase may allow, provided, however, that nothing in this condition shall excuse the seller from proceeding with the work to be performed hereunder as changed, nor extend delivery schedules without written authorization by Purchaser.


12.MODIFICATIONS.  It is expressly agreed that any provision of the form of Seller’s acceptance which modify, conflict with or contradict any provisions of this order, shall be deemed waived, and that the provisions of this order, by such acceptance, shall constitute the whole contract between the parties.  No modification of this order shall be binding unless agreed to in writing by Purchaser.  Purchaser’s failure to enforce any condition hereof or to exercise any option granted to Purchaser herein with respect to any portion of this order shall not constitute a waiver with respect to any other portion or be construed to entitle Seller to a subsequent waiver of the same portion.  No deviation from samples, specification, drawings any/or other descriptions furnished and adopted by Purchaser, shall be made or accepted prior to written approval.  In the event changes are made without such approval, Purchaser may cancel any or all of this order without liability.

13.ASSIGNMENT.  No assignment or transfer in whole or in part by Seller of this order or any monies due or to become due hereunder shall be binding upon Purchaser without its prior written consent.  Purchaser may assign any of its rights, duties or obligations under this order.  Payments, whether to Seller, or any Assignee, shall be subject to setoff or recoupment for claims which Purchaser may have against Seller, however arising.  No assignment approved by Purchaser shall relieve Seller of its primary liability under the terms and conditions of this purchase order, unless consented to in writing by Purchaser.

14.Seller agrees to fully INDEMNIFY, DEFEND AND HOLD HARMLESS Purchaser, its affiliates, agents, employees and assigns of and from any and all liabilities, claims, suits, actions, damages, judgments, losses, expenses, costs and fees, including but not limited to consumer actions of any kind, that may be committed or suffered by Seller or any of its employees, suppliers, contractors, agents or permitted assignees in connection with or relating to its or their performance or enjoyment of this order.


15.REMEDIES.  The remedies herein reserved shall be cumulative, and in addition to any other or further remedies provided in law or equity.  No waiver of a breach of any term or condition of this order shall constitute waiver of any other or subsequent breach of such or other term or condition.


16.TOOLS.  All specifications, drawing and other documents and data furnished by Purchaser and all tools, dies, molds, jigs, fixtures, patterns, machinery, plates, negatives, film, special test equipment or other items which have been furnished, paid for, or charged against Purchaser or which have had their costs amortized, will be delivered in good condition, normal wear and tear accepted, to Purchaser F.O.B. Seller’s plant immediately on request.  Seller warrants that said tools, dies, molds, jigs, fixtures, patterns, machinery, plates, negatives, film, special test equipment, specifications, drawings and other documents or data furnished will not be used for any work or for production of any material or part other than for Purchaser, or disposed of in any way without its written permission.


17.OCCUPATIONAL SAFETY AND HEALTH; LEGAL COMPLIANCE.  Seller warrants that the material or supplies sold or service rendered to the Purchase shall conform to all federal, state, and local laws, regulations or standards, including the standards and/or regulations promulgated by the U.S. Department of Labor under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, PL91-596), (hereinafter “OSHA”), or any amendments thereto.  In the event the material or supplies sold do not conform to the OSHA standards/regulations, the Purchaser may return the material or supplies for correction or replacement without liability at Seller’s expense, or corrected by Purchaser.


18.ARBITRATION.  All disputes, controversies or differences which may arise between the parties in connection with this order shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect.  Moreover, as a condition precedent to the initiation of any arbitration proceeding, the parties shall first submit their dispute to nonbinding mediation, to be conducted pursuant to mediation rules of the American Arbitration Association.

AN EQUAL OPPORTUNITY EMPLOYER